Teri Kanefield @Teri_Kanefield Author, lawyer (U.C. Berkeley). My threads are here: terikanefield-blog.com/ My author website is here: www.terikanefield.com/ May. 10, 2019 5 min read

(Thread) The View From the Right & Why it’s Wrong:

Unitary Executive Theory and Executive Privilege

Barr refused to give Congress the unredacted Mueller report.
Mnuchin refused to hand over Trump’s tax returns.
 https://www.reuters.com/article/us-usa-trump-russia-junior-surprise/donald-trump-jr-seen-resisting-senate-committee-subpoena-sources-idUSKCN1SF22Q 
Now Trump Jr. is resisting a subpoena.

2/ Congress held Barr in contempt, whereupon Barr asked Trump to exert “executive privilege” over the unredacted Report.
 https://int.nyt.com/data/documenthelper/819-barr-trump-letter-privilege/fe8c83dc6778bfe4bb74/optimized/full.pdf#page=1 
 https://www.nytimes.com/2019/05/08/us/politics/trump-executive-privilege-mueller-report.html 
Trump did so.
Pelosi then declared a Constitutional Crisis over Trump's refusal to cooperate.

3/ The view from the left is contained in this phrase from the Mueller report: “a President’s corrupt use of his authority.” (Vol. II, p. 8).

IOW, Trump is corruptly using power to obstruct investigations into himself, to put himself above the law.
 https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html 

4/ Trump’s view—and the view from the right—is that Trump has the right to “fight against” these investigations if he thinks they are ill-founded.

Recall Bar’s 4-part defense of Trump (given in his Senate testimony):

💠Trump is head of the executive branch;

5/
💠Trump therefore has “constitutional” control over the executive branch;
💠If Trump believes an investigation is based on false claims, he can shut it down out of concern for the effect the “false accusations” might have on his administration;

6/ 💠 Under this logic, he can even shut down investigations into himself.

John Yoo—former Dep. AG under G.W. Bush and author of the famous Torture Memo (arguing for Bush's authority to use torture on terror suspects) isn’t alarmed by Trump's actions.
 https://www.npr.org/2019/05/08/721552525/former-assistant-ag-offers-perspective-on-unitary-executive-theory 

7/ Yoo says the Founders anticipated two branches of government in conflict, and expected them to duke out power struggles between themselves.

Yoo is also a proponent of the Unitary Executive Theory, which he explains here👇
 https://www.npr.org/2019/05/08/721552525/former-assistant-ag-offers-perspective-on-unitary-executive-theory 

8/ The theory derives from the Constitution, Article Two, which vests executive power in the President.  https://www.law.cornell.edu/constitution/articleii 

Yoo says the President has ‘expansive’ powers to run the executive branch as he sees fit. He can even break laws if necessary for national security.

9/ The problem here is how we define “necessary for national security.”

To take 2 famous examples: Lincoln suspended the writ of habeas corpus (in limited context) during the Civil War; FDR interned Japanese-Americans.

Now Trump won't give Congress his tax returns.

10/ @Tribe and @JoshuaMatz8 argue that “all” presidents have used power in controversial ways.

(I’m not sure about the “all” part: Perhaps more accurately: All presidents have been accused of using power in controversial ways, and many have.)

11/ Yoo believes Trump has the power to withhold whatever documents he pleases.

He also thinks eventually Congress will get what it wants.

Congress, for example, holds the power of the purse, so it can start cutting off funding.
It also has impeachment powers.

12/ Yoo also believes the conflict between Congress and the Executive Branch is escalating too quickly, as if they're daring each other to exert more power.

At the same time, Yoo argues that Trump is overreaching in what he calls an emergency.
 https://www.npr.org/2019/05/08/721552525/former-assistant-ag-offers-perspective-on-unitary-executive-theory 

13/ Trump, Yoo points out, has declared more national emergencies than any other president except Lincoln. And Lincoln had an actual Civil War on his hands.

Well, yeah: Trump seems to think a “national emergency” is anything that makes him look bad.

14/ Now that the Executive Branch has grown to include a “vast federal law-enforcement apparatus” & regulatory agencies, the Unitary Executive Theory makes no sense.
 https://reason.com/2018/05/03/rethinking-the-unitary-executive/ 
Regulatory agencies, by their nature (rule-making) are subject to congressional oversight.

15/ The other problem with the right wing “Unitary Executive Theory” is that it doesn’t seem to apply to Democratic presidents. Did the GOP give Obama expansive powers?

It’s selectively applied to Republicans, so it isn’t a Rule as in Rule of Law.

It’s a cynical power grab.

16/ This brings us to Executive Privilege, which means the President can keep secrets if necessary for national security.

This raises the same question: What is necessary for national security?

Trump's view (no surprise) is if it makes him look bad, it harms national security.

17/ The term “executive privilege” is fairly new, but presidents have evoked something like it since Thomas Jefferson argued that he didn’t have to comply with a subpoena for records.

The subpoena he didn’t want to comply with was for records about his former VP Aaron Burr.

18/ Burr was on trial for treason. The papers Jefferson was holding exonerated him.
 https://www.history.com/this-day-in-history/thomas-jefferson-subpoenaed-in-aaron-burrs-treason-trial 
Jefferson said that he had the right to keep his papers secret to “protect the public interest.”

For him, protecting the public interest meant helping to convict Burr.

19/ The Supreme Court ruled against Jefferson, and Jefferson handed over the documents.

I expect Trump will argue that allowing Congress to see what’s behind the Mueller redactions will harm national security. (The argument applied to his taxes is a bit weaker.)

20/ Congress claims that it has a constitutional oversight of the Executive Branch.

If they call their inquiry an Impeachment Inquiry instead, they have a stronger claim.
 https://www.theatlantic.com/ideas/archive/2019/05/ny-seeks-trumps-tax-returnsand-supports-impeachment/589123/?utm_content=edit-promo&utm_term=2019-05-09T18%3A10%3A20&utm_source=twitter&utm_campaign=the-atlantic&utm_medium=social  (@jedshug)

21/ What happens next?

Trump will continue doing everything in his power to obstruct the investigations into his own wrongdoing.

The right will say he’s justified under the Unitary Executive Theory.

What matters, it seems to me, is for the truth to come out.
And it will.

22/ Too many people know what’s in all these docs, and there are too many ways to get to them.

For example, yesterday Judge Amy Jackson ordered the DOJ to submit the unredacted report for her review.

Mueller can (and I expect will) testify in Congress.

23/ Trump & the Right Wing has never been about exposing the truth.

As long as the Dems state that their goal is getting the truth, they’ll win.

The pursuit of truth is a noble goal that (should) soar above partisanship.

From Pelosi's interview👇
 https://www.cnn.com/2019/05/07/politics/pelosi-impeachment-trump-congress/index.html 
end/

All my threads are blogposts. You can read this one here:  https://terikanefield-blog.com/the-view-from-the-right-why-its-wrong-unitary-executive-theory-and-executive-privilege/ 


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